PSH-12-0014

* The original of this document contains information which is subject to withholding from
disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with
XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: February 23, 2012 )
) Case No.: PSH-12-0014
_________________________________________ )
Issued: June 1, 2012
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Hearing Officer Decision
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Diane DeMoura, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX (“the Individual”) to hold a
Department of Energy (DOE) access authorization.1 This Decision will consider whether, based
on the testimony and other evidence presented in this proceeding, the Individual should be
granted DOE access authorization. For the reasons detailed below, I find that the DOE should
not grant the Individual access authorization at this time.
I. BACKGROUND
The Individual, a 48-year-old employee of a DOE contractor, is an applicant for DOE access
authorization. DOE Ex. 3. During the application process, the Individual completed a
Questionnaire for National Security Positions (QNSP) in May 2011, and participated in an
August 2011 Personnel Security Interview (PSI). DOE Exs. 8, 9. After the PSI, the local
security office (LSO) referred the Individual to a DOE consultant-psychiatrist (“the DOE
psychiatrist”) for an evaluation. The DOE psychiatrist evaluated the Individual in September
2011 and issued a report. DOE Exs. 6, 7. After reviewing the Individual’s personnel security
file, the LSO informed the Individual in a January 2012 Notification Letter that there existed
derogatory information that raised security concerns under 10 C.F.R. §§ 710.8 (h) and (j)
(Criteria H and J, respectively) (alcohol-related concerns). See Notification Letter, January 24,
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
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2012. The Notification Letter also informed the Individual that he was entitled to a hearing
before a Hearing Officer in order to resolve the security concerns. Id.
The Individual requested a hearing on this matter. DOE Ex. 2. The LSO forwarded his request
to the Office of Hearings and Appeals, and I was appointed the Hearing Officer. At the hearing,
the DOE counsel introduced ten exhibits into the record (DOE Exs. 1-10) and presented the
testimony of one witness, the DOE psychiatrist. The Individual presented his own testimony, as
well as the testimony of eight witnesses: his wife, his son, his daughter, two friends, his co-
worker/team lead, his AA sponsor, and his counselor. See Transcript of Hearing, Case No. PSH-
12-0014 (hereinafter cited as “Tr.”).
II. REGULATORY STANDARD
The regulations governing the Individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including the nature of the conduct at issue, the frequency or recency
of the conduct, the absence or presence of reformation or rehabilitation, and the impact of the
foregoing on the relevant security concerns. 10 C.F.R. § 710.7(c). In considering these factors,
the Hearing Officer also consults adjudicative guidelines that set forth a more comprehensive
listing of relevant factors. See Revised Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (issued on December 29, 2005 by the Assistant to the President
for National Security Affairs, The White House) (Adjudicative Guidelines).
Ultimately, the decision concerning eligibility is a comprehensive, common-sense judgment
based on a consideration of all relevant information, favorable and unfavorable. 10 C.F.R.
§ 710.7(a). In order to reach a favorable decision, the Hearing Officer must find that “the grant
or restoration of access authorization to the individual would not endanger the common defense
and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(a).
“Any doubt as to an individual’s access authorization eligibility shall be resolved in favor of the
national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531 (1988) (the
“clearly consistent with the interests of national security” test indicates that “security clearance
determinations should err, if they must, on the side of denials”).
III. FINDINGS OF FACT AND ANALYSIS
A. Whether the LSO Properly Invoked Criteria H and J
1. The Individual’s Alcohol Use and Related Facts
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The Individual began drinking alcohol when he was 18 years old, and continued drinking
throughout his adult years. DOE Ex. 7 at 2. The Individual’s alcohol consumption increased
over time. Id. at 3. In September 2005, the Individual was arrested for aggravated Driving
While Intoxicated (DWI). Id. He was arrested for a second aggravated DWI less than seven
months later in April 2006. Id. at 4. As a result of the second DWI arrest, the Individual
participated in a court-mandated substance abuse treatment program and attended Alcoholics
Anonymous (AA) meetings. Id. at 5-6. The Individual continued to drink alcohol after the two
DWI arrests and subsequent treatment. Id. at 6.
As noted above, the Individual was evaluated by the DOE psychiatrist. Following the
evaluation, the DOE psychiatrist diagnosed the Individual with Alcohol Abuse. DOE Ex. 7 at 9,
11. The DOE psychiatrist further opined that the Individual did not demonstrate adequate
evidence of rehabilitation and reformation. Id. at 12. He concluded that in order to demonstrate
adequate evidence of rehabilitation and reformation, the Individual should engage in an
outpatient treatment program “of moderate intensity,” such as participating in an outpatient
substance abuse counseling program or attending AA meetings while working with an AA
sponsor. Id. The DOE psychiatrist also noted that the Individual’s treatment program should
include complete abstinence from alcohol and should last at least one year. Id.
2. The Associated Security Concerns
Criterion H concerns information that a person has “an illness or mental condition of a nature
which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed
clinical psychologist causes, or may cause, a significant defect in judgment or reliability.”
10 C.F.R. § 710.8(h). Criterion J relates to conduct indicating that the Individual has “been, or
is, a user of alcohol habitually to excess, or has been diagnosed by a psychiatrist or a licensed
clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R.
§ 710.8(j). It is well-established that the excessive use of alcohol raises security concerns
because “excessive alcohol consumption often leads to the exercise of questionable judgment or
the failure to control impulses, and can raise questions about an individual’s reliability and
trustworthiness.” Adjudicative Guidelines, Guideline G, ¶ 21. See also Personnel Security
Hearing, Case No. TSO-0678 (2008).2 In light of the DOE psychiatrist’s determination that the
Individual met the criteria for Alcohol Abuse, a condition which causes or may cause a
significant defect in his judgment and reliability, as well as the Individual’s prior DWI arrests,
the LSO properly invoked Criteria H and J.
B. Whether the Individual Has Mitigated the Security Concerns
Among the factors that may serve to mitigate security concerns raised by an individual’s alcohol
use are that “the individual acknowledges his or her … issues of alcohol abuse, provides
evidence of actions taken to overcome this problem, and has established a pattern of abstinence
(if alcohol dependent) or responsible use (if an alcohol abuser),” and that “the individual has
successfully completed inpatient or outpatient counseling or rehabilitation along with any
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case number of the decision
in the search engine located at http://www.oha.doe.gov/search.htm.
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required aftercare, has demonstrated a clear and established pattern of modified consumption or
abstinence in accordance with treatment recommendations such as participation in meetings of
Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a
duly qualified medical professional or a licensed clinical social worker who is a staff member of
a recognized alcohol treatment program.” Adjudicative Guidelines, Guideline G, ¶ 23.
At the hearing, the Individual testified that he has been abstinent from alcohol since July 2011,
approximately nine months as of the hearing. Tr. at 124. According to the Individual, he
stopped drinking alcohol because he began having health problems, and abstaining from alcohol
helped him feel better. Id. The Individual stated that the DOE psychiatrist’s report helped him
understand the issues he had with alcohol. Tr. at 124. After receiving the DOE psychiatrist’s
report approximately two months prior to the hearing, the Individual sought out an intensive
outpatient treatment program (IOP), a ten week program that combined individual and group
counseling, to address him alcohol problem. Tr. at 126. The Individual found the IOP helpful
and planned to continue in the aftercare group after he completed the 10-week program. Tr. at
133. The Individual began attending AA meetings and, with the help of a sponsor, is working
the program’s twelve steps. Tr. at 133-34. The Individual intends to continue participating in
AA indefinitely. Id. Through his work in the IOP and in AA, the Individual learned that he
cannot drink alcohol in moderation and he intends to remain abstinent from alcohol in the future.
Tr. at 128, 140. The Individual’s testimony regarding his abstinence from alcohol and his
intention to remain abstinent in the future was corroborated by his friends and family. 54, 105-
06, 117. The Individual’s wife, son, and daughter each testified that the Individual last consumed
alcohol in July 2011 during a family vacation. Tr. at 54, 102, 112. They also noted that, since
he stopped drinking alcohol, the Individual’s health has improved, and their family relationships
have strengthened. Tr. at 56, 105, 113-14.
The Individual’s counselor and AA sponsor each testified that the Individual was reluctant to
fully participate in the programs at the beginning, but his attitude quickly changed. Tr. at 16, 67.
According to the Individual’s counselor, the Individual is fully involved in the IOP and has
complied with all of the program’s requirements. Tr. at 16-17. The Individual attends group
counseling sessions three times per week, each session lasting three hours, in addition to a
weekly one-hour individual counseling session. Tr. at 14. In addition to his IOP attendance,
according to the Individual’s AA sponsor, the Individual attends a minimum of two AA meetings
per week and meets with the sponsor for an additional one to three hours per week. Tr. at 64-65.
The Individual’s sponsor stated that the Individual is very eager to work the program and feels “a
calling” to help others in the program. Tr. at 72, 81. The Individual’s friends and family have
noticed that the Individual enjoys both the IOP and AA and has found the programs helpful. Tr.
at 55-56, 87-90, 104, 115.
After listening to the hearing testimony, the DOE psychiatrist did not change his diagnosis of
alcohol abuse. Tr. at 148.. He cited the Individual’s nine-month period of abstinence and two
months of treatment as positive factors, and he also noted that the Individual appeared to have
made significant progress in addressing his past issues of denial and minimization of his alcohol
problem. Tr. at 143, 145-46. However, the DOE psychiatrist opined that, despite the
Individual’s progress, he had not yet established adequate evidence of rehabilitation and
reformation from alcohol abuse, and the Individual’s risk of relapse remained at a moderate
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level. Tr. at 148-49. In this regard, the DOE psychiatrist noted that the Individual had taken all
of the necessary steps to address his alcohol problem, but needed additional time in order to be
fully rehabilitated and reformed. Tr. at 152.
Based on the foregoing, it is clear that the Individual has begun taking important steps to treat his
alcohol problem. He has acknowledged his alcohol problem, regularly attends substance abuse
counseling sessions, and actively participates in AA meetings. However, although the Individual
has remained abstinent for approximately nine months as of the hearing, and has engaged in two
months of treatment, he has a history of significant alcohol consumption throughout his
adulthood that includes two alcohol-related arrests. In light of these factors, I find that the
Individual is in the early stages of his recovery. In this regard, I found compelling the testimony
of the DOE psychiatrist that the Individual’s current period of abstinence is not sufficient to
establish adequate evidence of rehabilitation and reformation, and that his current risk of relapse
remains at a moderate level. Given these facts, I cannot conclude at this time that the Individual
has adequately mitigated the Criteria H and J concerns raised by his past alcohol use. See
Personnel Security Hearing, Case No. TSO-1087, (2011); Personnel Security Hearing, Case No.
TSO-0888 (2010); Personnel Security Hearing, Case No. TSO-876 (2010).
IV. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
doubts regarding the Individual’s eligibility for a security clearance under Criteria H and J of the
Part 710 regulations. I also find that the Individual has not presented sufficient information to
fully resolve those concerns. Therefore, I cannot conclude that granting the Individual access
authorization “would not endanger the common defense and security and would be clearly
consistent with the national interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE
should not grant the Individual access authorization at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Diane DeMoura
Hearing Officer
Office of Hearings and Appeals
Date: June 1, 2012